As we have noted in recent days[1], upon returning to the Oval Office, the Trump Administration swiftly:

• Sent the message that it will pursue an agenda of aggressive enforcement related to immigration and preventing undocumented workers from working in the U.S.;
• Ordered federal employees to return to working physically from offices and froze all hiring for civilian employees, suggesting planned stripping of resources for federal agencies and other federal bodies (including those tasked with enforcing Equal Employment Opportunity-related rights (EEO));
• Overturned a host of “harmful” executive orders passed during the Biden Administration, including executive orders seeking to protect workers against sexual orientation and gender identity or expression discrimination and to promote greater workplace safety requirements;
• Overturned Executive Order 11246 and related amendments, ending a variety of federal policies and related requirements for federal government contractors that had been in place since the Lyndon Johnson Administration and now affirmatively prohibiting them from considering protected characteristics as part of employment decisions; and
• Struck executive orders and presidential memoranda relating to equal employment opportunity, diversity, and inclusion efforts applicable to the federal government as an employer.

Notwithstanding the policies and potential future actions they portend, other than with respect to immigration enforcement, none of the foregoing changes summarized above apply to private employers that do not contract with the federal government — and with good reason. A presidential administration cannot on its own rewrite the equal employment opportunity statutory scheme woven through the federal fabric by laws like Title VII, the Americans with Disabilities Act, and the like. Changes to the basic scope of those laws can only come through legislative action (subject to presidential veto) and subsequent court interpretation.

But this certainly is not to say that the new administration is powerless to pursue the same policy bend portended by the changes mentioned above against private employers through its political and extra-statutory powers. And it would appear such indirect efforts to change the federal legal framework for EEO protections is underway.

In late January, the Equal Employment Opportunity Commission (EEOC) made several key removals of content from its online guidance resources — the website location where the EEOC publishes its views on what federal law should be interpreted to mean describing the federal government’s enforcement priorities under the framework of laws administered by the agency. The majority of these first guidance withdrawals pertain to LGTBQ worker protections, including the removal of several pages of resources relating to the United States Supreme Court’s 2020 decision in Bostock v. Clayton County, where the court recognized that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity. While removal of this guidance does not change Bostock’s definitive statement that Title VII covers sexual orientation and gender identity, its withdrawal surely indicates that enforcing Bostock’s mandate will no longer be a priority for the EEOC and for the individuals who control how the agency uses its limited resources.

The new Administration has so far made no official announcement on these changes. Instead, while guidance and other pages on Bostock and protections for LGTBQ workers were still on the EEOC’s website at the end of the Trump Administration’s first week in office, they have subsequently been taken down from the website in an apparent silent retirement. 

On the other hand, the administration has not been silent on its recent personnel changes;  last week the President before the expiration of their five-year terms, along with terminating the services of the Commission’s General Counsel. The move came just hours after the President General Counsel Jennifer Abruzzo and removed a Democratic National Labor Relations Board member. Both the EEOC and the NLRB are now presently without a quorum of members, handcuffing the agencies’ ability to undertake certain high-level enforcement functions.

In another development similar to the silent removal of EEOC guidance regarding LGBTQ protections, previously available content on the EEOC website raising concerns about how Artificial Intelligence (AI) tools can result in unlawful employment discrimination have now been removed. This would seem to track with two other executive order actions taken by the Administration shortly after the inauguration (one striking a 2023 order seeking to create federal oversight of AI, another indicating the administration’s plan to take a hands-off approach to use of AI). Two weeks into this new administration have already brought in a sea change in the world of labor employment. It seems a certainty that more is to come — along with state law reaction, legal challenges, and the political and social backlashes that have become the norm in recent years. Â鶹´«Ă˝ and our team of counselors will continue monitoring and reporting on these developments while doing our utmost to help navigate these troubled and shifting waters with practical, business-focused advice.

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[1] Â鶹´«Ă˝â€™s robust, cross-disciplinary team has created a “100 Days and Beyond: A Presidential Transition Hub,” which will be regularly and swiftly updated to keep you apprised of changes covering not just labor and employment but also legal areas like Artificial Intelligence, Antitrust & Competition, Environment, Government Enforcement, Finance, and Technology regulation.

Last week, the Equal Employment Opportunity Commission (EEOC) filed two lawsuits alleging that employers violated the (PWFA).

One , filed in Alabama, alleges that an off-road vehicle manufacturer violated the PWFA when it refused to provide a new employee with temporary accommodations that would allow her to take time off for doctors’ appointments and to work only 40 hours per week during her pregnancy. According to the EEOC’s complaint, the employer denied the employee’s requested accommodations indicating that (i) the employee would continue to accrue absences under the employer’s attendance policy for time off taken for appointments until she became eligible for paid leave time after her probationary period ended, and (ii) the employer could not accommodate the employee’s request not to work overtime during her pregnancy because overtime was an essential function of the employee’s job. The complaint further alleges that the employee requested a disability leave but was denied leave as the employee had not yet been employed for the required number of months. The complaint indicates that the employee ultimately resigned her employment rather than be terminated for taking time off to attend medical appointments or failing to work overtime hours.

The EEOC’s , filed in Oklahoma, alleges that an urology practice violated the PWFA by refusing to allow a pregnant employee to “periodically sit, take short breaks to eat or drink, and occasionally prop up her feet for a short time” in order to address swelling and pain in her feet, legs, and abdomen; refusing to allow the employee to temporarily work part time; and forcing the employee to take unpaid leave instead of providing temporary accommodations for her pregnancy, which would have allowed the employee to continue working. The complaint also alleges that the employer failed to ensure that the employee would be provided breaks for lactation following birth and terminated the employee’s employment when the employee was unable to return to work without assurances that she would receive the necessary lactation breaks.

These cases are the second and third enforcement actions filed by the EEOC in the last month. Although all of the cases are in the early stages, and it remains to be seen how they will be resolved by the courts, they serve as an important reminder to employers of the need to comply with their . Specifically, the PWFA requires employers to provide reasonable accommodation for qualified employees or applicants with known limitations relating to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship (i.e., significant difficulty or expense). In addition, the PWFA prohibits employers from:

• requiring employees to accept a particular accommodation, unless it was the result of an interactive process;

• denying employment opportunities based on a qualified employee’s or applicant’s need for a reasonable accommodation;
• requiring an employee to take leave if another reasonable accommodation would allow the employee to keep working; or
• retaliating against an employee or applicant for requesting or using a reasonable accommodation or engaging in other protected activity under the PWFA.

Employers must also understand how these obligations under the PWFA differ from obligations under the Americans with Disabilities Act (ADA) or family and medical leave laws. For instance, employees are not required to establish the existence of a disability when requesting an accommodation under the PWFA. In circumstances where the need for a pregnancy-related accommodation is obvious, employees are generally not required to provide medical documentation in order to establish a need for a pregnancy-related accommodation and, in such cases, an employer’s request for medical documentation may be deemed unreasonable. Further, in circumstances where an employer is allowed to request medical documentation from an employee’s or applicant’s health care provider, the documentation must be limited to documentation that (i) confirms the physical or mental condition and its relation to pregnancy, childbirth, or a related medical condition, and (ii) describes the work adjustment that is needed due to the condition. Given these limitations, employers should ensure that their policies and accommodation request forms distinguish between requests for accommodation under the PWFA and requests for accommodation under the ADA. Finally, employers must be careful not to require or force pregnant employees to use unpaid or other available leave when the employee has not requested leave, and there are other reasonable accommodations (e.g., breaks, modification of work space or job duties, temporary job transfer, time off for medical appointments, etc.) that would allow the employee to continue working during the pregnancy.

As we reported last month, the U.S. Equal Employment Opportunity Commission’s (EEOC) extended deadline to file a 2023 (for covered entities) was July 9, 2024. That date now behind us, what’s a company to do when it realizes it was required to file an EEO-1 report, but failed to do so by that deadline? 

Perhaps surprisingly, not much. 

As a refresher, not all employers are mandated to complete the EEO-1 report. The EEO-1 report requires private employers with 100 or more employees (measured as a threshold reached at any time during Q4 of the reporting year), as well as employers with at least 50 employees who have contracts with the federal government exceeding $50,000 in value, to submit data on the racial/ethnic and gender composition of their workforce. (Note that integrated employers or those closely affiliated with other employers, whose combined headcounts are 100 or more employees, are also required to file.) Employers can determine whether they align to the EEOC’s reporting requirements using the EEOC’s Online Filing System (OFS) .

So, the lingering question for covered employers who failed to file in time is: what do we do? Quite simply, late reports will not be accepted. The EEOC deems employers who failed to submit required EEO-1 reports on time as “out of compliance” and does not permit submission of any such late reports after-the-fact or during the subsequent reporting cycle. Rather, those employers should simply wait until the next reporting cycle to submit a current EEO-1. That said, the EEOC may affirmatively issue a non-compliant employer with a notice of non-compliance and, at that time, provide the opportunity to file the late reports. 

If you are an “out of compliance” employer that receives such a notice, you should immediately consult with counsel to determine the best way to efficiently remedy the situation, as the EEOC has the authority to seek enforcement by court action — a needlessly expensive (and publicly available) process.

Ok, so you missed the deadline, you can’t file late (absent specific notice from the EEOC), and you’re technically “out of compliance.” What kind of liabilities will you face? 

Nothing too drastic — at least, not immediately. There are no financial penalties for a failure to file, though, as noted above, employers may be by order of a federal district court. However, if in the interim an employee files a charge of discrimination with the EEOC or initiates other litigation, it is likely that historical EEO-1 reports will be a fair subject of the claim. Frequently, the EEOC and other administrative agencies request employer EEO-1 reports in connection with investigating a charge. If a covered employer has not filed an EEO-1, the EEOC can issue a non-compliance finding, even if the underlying discrimination charge is unsubstantiated; this, in turn, can result in a conciliation process requiring additional compliance reporting and other non-monetary penalties. At the very least, the EEOC will be more suspect of the non-compliant employer than it would have been if said employer were in compliance. 

A few other important considerations in connection with EEO-1 filings:

• Do not file false reports — for making a willfully false statement on an EEO-1 report is a fine, imprisonment of up to five years, or both.
• Do not mail or email an EEO-1 report. The EEOC cautions that it will only accept EEO-1 reports that are submitted and certified through the OFS and will not accept reports submitted via paper or non-OFS electronic means.
• If you cannot meet the EEO-1 report filing deadline, consider whether you can apply for an undue hardship exemption or submit a written proposal to change the filing date before the required filing date. 

As we have previously advised, it is essential for employers to recognize the importance of EEO-1 reporting and prioritize compliance with federal regulations. To prevent future non-compliance, employers should establish a responsible employee or third-party vendor to manage next year’s EEO-1 report and if possible, register in the OFS in advance. The OFS and EEOC website will also share updates on upcoming filing timelines.

Special thanks to Navea Frazier, a summer associate in Â鶹´«Ă˝â€™s Chicago office, for her contributions to this article.

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued the final version of its Enforcement Guidance on Harassment in the Workplace (the “Guidance”) by a 3-2 vote. The Guidance updates prior EEOC pronouncements about how Title VII will be interpreted and applies to claims of unlawful harassment based on race, disability, national origin, gender identity, sex, and other characteristics. The EEOC finalized the Guidance (which was initially issued in October 2023) after receiving considerable public comment, and the agency included 77 scenarios which explained how an employer might (or might not) violate Title VII under specific facts and circumstances.

As we previously wrote, one provision of the Guidance addresses harassment based on sexual orientation and gender identity. Specifically, the Guidance states that “harassing conduct based on sexual orientation or gender identity includes… harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex, repeated and intentional use of a name or pronoun inconsistent with the individuals known gender identity (misgendering), or the denial of access to a bathroom or other sex – segregated [sic] facility consistent with the individual’s gender identity.”

The Guidance was immediately challenged in court. Attorneys General for 18 states, led by Tennessee, sued two weeks after its issuance, claiming that the EEOC had no legal authority to effectively amend Title VII by creating new protections that were not authorized by Congress. They also argued that the landmark 2020 Supreme Court decision that the EEOC relied upon, Bostock v. Clayton County, only held that it was discriminatory to fire someone because of their sexual orientation or gender identify, and the Supreme Court expressly declined to address issues about “bathrooms, locker rooms and dress codes” in Bostock. The AGs claimed that the states are harmed because the Guidance interferes with the states’ “preferred gender ideology.” For example, Arkansas has passed a “Given Name Act” which prohibits a school employee from using a name other than that listed on a student’s birth certificate, absent parental permission.

One week after the Tennessee suit was filed, the Texas AG joined the fray, filing a motion in an existing case in Texas federal court to challenge the gender identity portions of the Guidance on essentially the same grounds. The Texas AG also argued that similar EEOC gender identity guidance issued in 2021 was vacated as unlawful by that Texas court in 2022. In the new motion, the Texas AG admitted that Texas has employment policies that violate the gender identity provisions of the Guidance but claimed that enforcement “fundamentally infringes on the sovereignty of Texas.”

Each suit seeks an injunction to prevent enforcement of the gender identity portion of the Guidance. The fact that the Texas AG is pursuing the challenge before the same court that vacated similar EEOC guidance two years ago makes it likely that the Court may vacate the Guidance a second time, or even issue a nationwide injunction prohibiting enforcement of the gender identity portion of the Guidance. Stay tuned as we follow both cases to see if the disputed Guidance remains in effect.

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited to help employers understand what type of conduct the agency considers to be unlawful harassment.

The EEOC’s guidance focuses on three components of a harassment claim:

1. Covered bases and causation (i.e., whether the conduct was based on an individual’s lawfully protected characteristics such as race or sex);
2. the nature of the harassment resulting in discrimination affecting a term, condition, or privilege of employment; and
3. a basis for holding the employer liable for the conduct.

The guidance also addresses systemic harassment and enforcement. Overall, the new guidance is a good resource for addressing harassment and retaliation and reflects the evolving nature of remote work and recent Supreme Court case law expanding protections for gay and transgender employees.

Some highlights from the guidance:

• Sex-based discrimination under Title VII includes employment harassment based on sexual orientation or gender identity, including how that identity is expressed. The EEOC points out, for instance, that repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity, called “misgendering,” could be considered harassment. 

• The EEOC recognizes that where an employee experiences harassment not based on a protected category, there is no causation to support an actionable discrimination claim.

• The EEOC also stresses that, for workplace harassment to violate the law, not only must it be based on a protected category, but it must also affect a term or condition of employment. The EEOC notes that the federal statutes do not impose general civility codes that cover “run-of-the-mill boorish, juvenile, or annoying behavior” but requires tangible or economic effects.

• The guidance also reaffirms that, to be actionable harassment, the conduct must be severe or pervasive and must be viewed in light of the totality of the circumstances. By way of example, the EEOC notes that a loan remark by a co-worker about a female menstruating is insufficient to create an objectively hostile work environment, despite it being offensive.

• Finally, in this guidance, the EEOC recognizes an employer’s defense to hostile environment claims where the employer takes prompt remedial action to prevent and correct the harassment and the complaining employee unreasonably fails to use the employer’s complaint procedure or take other steps to minimize the harm from the harassment.

The new Enforcement Guidance is an excellent resource for reviewing the current law on workplace hostile environment and should be very helpful for HR professionals and in-house counsel. Of course, employers should take the time to review current policies and complaint history and make sure they are updated consistent with this guidance. If you need any assistance in evaluating current workplace harassment policies and procedures — or developing new ones — please contact your Â鶹´«Ă˝ & Lardner attorney.

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) published a (the “Rule”). By way of background, the PWFA requires covered employers to provide reasonable accommodations to employees with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless to do so would cause undue hardship to the employer.

The Rule, which takes effect June 18, 2024, provides much-needed clarity regarding the PWFA. In particular, the Rule provides definitions for several terms, including defining a “known limitation” as a limitation that the employee or the employee’s representative has communicated to the employer. Likewise, the Rule defines the term “limitation” broadly, including minor or episodic conditions. The Rule also clarifies that a condition need not be considered a “disability” under the Americans With Disabilities Act (ADA) to qualify under the PWFA.

In addition to defining these terms, the Rule provides several examples of the types of reasonable accommodations that can be made available to employees under the PWFA. Such examples include frequent breaks, schedule changes, light duty, modifying equipment, and even temporarily suspecting essential functions. The Rule confirms that the definition of “undue hardship” mirrors the ADA definition of the same term (meaning significant difficulty or expense for the employer). Along with implementing the Rule, the EEOC put out a which walks through the various highlights of the Rule, including: covering key definitions in the Rule and summarizing processes including the interactive process; the ability to require documentation from an employee’s treating health care provider; and the Rule’s non-discrimination and anti-retaliation provisions.  Employers should familiarize themselves with the Rule and seek advice from counsel in the event of any questions as to the Rule’s requirements, necessary policy updates, interplay between the PWFA and other laws, and following the PWFA in practice.

If it’s a typical subject of a class action lawsuit, it’s likely one of the EEOC’s New Year’s resolutions.

Just one month into 2024, some of us are already questioning whether we were a bit too ambitious with our New Year’s resolutions. Not the Equal Employment Opportunity Commission (EEOC), however. In the first month of the year — ambitious as ever — the EEOC already launched a new focused on one of its several “priorities” for 2024. 

The commission isn’t likely to slow down. Employers are expected to see continued efforts to advance each EEOC priority in the coming months. These priorities outlined below, which focus on areas that are often the subject of class and collective action lawsuits, reflect an evolving understanding of the challenges faced by employees and employers alike.

Here are the key focus areas that the EEOC is emphasizing in 2024:

1. Eliminating Barriers in Recruiting and Hiring. The EEOC is focusing on policies and practices that may be neutral on their face but are likely to result in a disparate impact felt by a protected class (and thus susceptible to class action lawsuits). For example, the use of artificial intelligence (AI) in hiring, screening tools facilitated by AI or automated systems, job advertisements that exclude or discourage certain groups from applying, and employers’ reliance on rigid job application systems that may be difficult for those with disabilities to access.
2. Protecting Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination. The EEOC defines vulnerable workers as: immigrant and migrant workers and workers on temporary visas; people with developmental or intellectual disabilities; workers with mental health-related disabilities; individuals with arrest or conviction records; LGBTQI+ individuals; temporary workers; older workers; individuals employed in low-wage jobs, including teenage workers employed in such jobs; survivors of gender-based violence; Native Americans/Alaska Natives; and persons with limited literacy or English proficiency. To implement this priority, the EEOC says that district offices and the agency’s federal sector program will identify vulnerable workers and underserved communities in their districts or within the federal sector for focused attention.

In furtherance of this priority, the EEOC launched its new just last week to ensure that these workers have access to the EEOC’s services and know their rights, making the Commission more accessible to those historically underserved. The program will hold listening sessions with stakeholders around the country to identify existing barriers to reporting discrimination, review and evaluate effective outreach strategies and tools, identify best practices for reaching vulnerable and underserved communities, and consider how to develop an increased presence in rural areas and areas far from physical EEOC office locations.

3. Addressing Selected Emerging and Developing Issues. The EEOC is focused on issues that involve new or developing legal concepts or topics that are difficult or complex. By way of example, employers should expect increased scrutiny of:
4. Qualification standards and inflexible policies or practices that discriminate against individuals with disabilities;
5. Policies and practices for workers affected by pregnancy, childbirth, or related medical conditions under the Pregnant Workers Fairness Act and Pregnancy Discrimination Act;
6. Discrimination influenced by or arising as backlash to local, national, or global events, including discriminatory bias arising as a result of recurring historical prejudices; and
7. Discrimination associated with the long-term effects of the COVID-19 pandemic, including Long COVID.
8. Advancing Equal Pay for All Workers. Pay equity remains a persistent issue, and the EEOC is doubling down on efforts to bridge the wage gap. The focus extends beyond gender-based pay disparities to encompass all forms of wage discrimination, including those based on race, ethnicity, and other protected characteristics.

Employers can expect increased scrutiny of pay secrecy policies, the discouraging or prohibiting of workers from asking about pay or sharing their pay with coworkers, and a reliance on past salary history or applicants’ salary expectations to set pay.

5. Preserving Access to the Legal System. The EEOC will continue to scrutinize any practice that may deter employees from filing charges with the EEOC or cooperating freely in EEOC investigations. Specifically, the EEOC says it will focus on:
6. Overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements;
7. Unlawful, unenforceable, or otherwise improper mandatory arbitration provisions;
8. Employers’ failure to keep applicant and employee data and records required by statute or EEOC regulations; and
9. Retaliatory practices that could dissuade employees from exercising their rights under employment discrimination laws. 
10. Preventing and Remedying Systemic Harassment. The EEOC is intensifying efforts to address systemic discrimination, recognizing that isolated incidents can contribute to broader patterns of inequality. The EEOC says it will continue to focus on “strong enforcement with appropriate monetary relief and targeted equitable relief to prevent future harassment.”

Employers are encouraged to take proactive steps to identify and rectify systemic issues within their organizations.

In conclusion, the EEOC’s priorities for 2024 reflect a commitment to adapt to the evolving nature of the workplace. Employers are advised to stay informed and align their practices with these evolving priorities.

In the wake of the Supreme Court’s decision invalidating affirmative action at America’s colleges and universities, a flurry of lawsuits challenging private employers’ diversity and inclusion programs have been filed around the country. 

Meanwhile, with those suits making their way through the courts, the Equal Employment Opportunity Commission (EEOC) continues to remind us to remain focused on fostering inclusive work environments free from bias and harassment. In addition to issuing proposed enforcement guidance on harassment in the workplace (see this week’s companion article), the agency . 

The EEOC’s  provide important details on charges filed, litigation pursued, and recoveries achieved by the agency each year. While the 2023 report is not yet finalized, the EEOC’s recent publication sheds some light on its litigation priorities, including details on the types of lawsuits the agency is pursuing and highlighting key focus areas that employers need to consider. The key takeaway: the EEOC is acting on its Strategic Enforcement Plan in the litigation it’s pursuing.

In its publication, the EEOC notes that it filed 143 new employment discrimination lawsuits in FY 2023, a greater than 50% increase over the prior year’s litigation statistics. An important focus, the agency notes, is on systemic discrimination lawsuits (it filed 25 in FY 2023, double the number in the past three years). The  a “systemic” discrimination litigation as one that targets a “pattern or practice, policy and/or class … where the discrimination has broad impact on an industry, profession, company, or geographic location.” 

This uptick in systemic lawsuits indicates the EEOC is pursuing class action employment litigation, like the nationwide age discrimination suit it  earlier this month for $2.4 million. In that case, the defendant employer was accused of violating the Age Discrimination in Employment Act (ADEA) through its initiative to hire more millennials into its workforce, wherein it denied sales representative positions to applicants over 40 years old. Similar outcomes can be expected in the future as the EEOC’s systemic litigation initiatives continue.

The agency’s litigation efforts also focused on single- and multiple-employee non-systemic class suits, challenging barriers in recruiting and hiring, qualification standards, and inflexible workplace policies the EEOC alleges discriminate against individuals with disabilities. The report also notes that the agency’s 2023 litigation docket continued its focus on litigation involving the long-term impacts of COVID-19 on certain workers, pay equity, and combating unlawful harassment.

The wide array of litigation initiated by the EEOC in FY 2023 reminds us that employers should:

• Closely and regularly examine their compensation structures to ensure parity and implement transparent processes for promotions to counteract pay equity disparities
• Create a workplace culture that prioritizes diversity and inclusion, which is crucial in addressing gender- or race-based concerns
• Review, update, or implement robust anti-discrimination policies, provide diversity and inclusion training, and foster an environment that values employees’ differences
• Be mindful of stereotypes and biases associated with age and proactively address these within the workplace
• Encourage cross-generational collaboration and provide training on age inclusivity
• Prioritize flexibility and accessibility to ensure that employees with disabilities have the support they need to thrive in the workplace

You can expect another update from us, once the EEOC publishes its final report for FY 2023, with our further assessment on trends and guidance.

Sexual orientation, gender identity, and race continue to be widely discussed and politicized throughout the U.S. Issues related to these protected categories also continue to arise in the workplace. The  that will help employers address emerging issues related to these categories, including issues related to employee conflict at work.

For example, employers are dealing more frequently with issues related to employees and customers intentionally misgendering and misnaming transgender employees. The proposed EEOC guidance states that the intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering) as well as the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity will constitute actionable sex harassment.

This new guidance is the first document the EEOC commissioners have voted upon and issued on harassment since the agency’s “” in 1999. If the new guidance is finalized, it will supersede the 1999 and prior guidance. 

Issuing this new harassment guidance has also been a top priority of EEOC Chair Charlotte Burrows. The guidance is sub-regulatory — meaning it does not carry the weight of statutes or regulations — but it will be influential during EEOC investigations and litigation.

In addition to issues related to sexual orientation and gender identity, the new guidance also discusses race, color, and national orientation harassment and gives examples. The guidance states that harassment based on traits or characteristics linked to an individual’s race, such as their name, cultural dress, accent or manner of speech, and physical characteristics, including grooming practices — such as harassment based on hair textures and hairstyles commonly associated with specific racial groups — would violate Title VII. The proposed guidance also discusses the ways in which social media and electronic communications can affect terms and conditions of employment and thus constitute harassment. 

Employers should review the proposed guidance and, once it is finalized, update their no harassment policies and related trainings. The EEOC’s proposed guidance requires employers to provide effective anti-harassment policies, complaint processes, and trainings. It will also help employers who need to respond to employee complaints of harassment. The proposed guidance is open for public comment through November 1, 2024.